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Enough with the Cosmetic Activities: Musings on Legislative Needs for the Kenyan Creative Industry.

Here we go again!!! Another legislative fluff that has the industry excited yet it has nothing much to offer! It’s time we got angry as creative economy practitioners. Let’s start here. Why was the previous constitution of the docket – Ministry of Sports, Arts and Culture divided into 2? This previous nomenclature was perfectly fine, previous CS could have done better to demonstrate so but I guess it is the peril of hiring people who are not passionate and aware of the creative industry challenges and its wants and needs. In the past months since the election and the changes to the docket, I have not seen any notable changes, perhaps due to the division.

Now, let’s talk about these 2 pieces of fluffy bills: Creative Economy Bill and Creative Economy Support Bill. However, the Creative Economy Bill seems to have been dropped. As a practitioner, these two attempts are rather useless and a waste of taxpayers’ money. Let’s call a spade a spade, shall we?

Have you ever asked yourself why as a country and as a content, creative economy conversations are fashioned in isolation? Connoting that the creative industries are not part of the trade conversation or their economic contributions. Don’t we deserve a seat at the main trade and policy tables? Who even coined the term ” creative economy”? I think the term “creative industries” is where we should have stopped trying to name our entertainment and cultural industries as a whole.

The creative industry provides employment and opportunities to many: young and old alike. It has unfortunately suffered the misfortune of being viewed as a hobby-centric venture rather than a lucrative one from a Cultural perspective.  Yet, this industry contributes millions of US Dollars to the global economy. At a continental level, we have seen growth in our local markets and the export of our Entertainment and Cultural products to international markets. But where is the money? This is the question that we should be answering. If we find the money we solve sustainability and consistency in the cultural industries. And how do we find the money? Passing relevant, progressive, and practical laws fosters local and international success. 

There is a legislative lacuna in accommodating the needs of creative industry entrepreneurs. However, this cannot be solved through a single Bill. A single Bill cannot purport to amend all the laws and policies that relate to the business matters of the creative economy. I know we are “special” but it is not something to celebrate. The creative industry in my view is seen as special because of the vulnerabilities we face. I sum them up as; a lack of knowledge (rights and business acumen) and a lack of organization ( as sub-sectors and at a policy and legislative level). However, this can easily be cured. I digress.

If we want to fix the issue of sustainability and monetization of the creative industries, let us delve into the existing laws that already allow these industries to exist but need to be sharpened to allow them to grow.

The Creative Industries Support Bill highlights the registration of guilds for example. Let’s review the Societies Act. What are the weaknesses if any, on issues registration? What are the problems facing this legislation and its execution that either hamper the registration of these associations, societies, or guilds as we like to call them? Let’s identify the what and propose for amendments, inclusions, and/or additions where needed. For example, in my experience I have observed that our associations in the creative space do not thrive because of governance issues, maybe we should contemplate pursuing regulations to the Societies Act that guide creative industry guilds on what they ought to do to be sustainable as an association.

Taxes! How do we envision ourselves introducing rebates or concessions on tax matters through a separate bill? No way that will work. We go to the mother acts of the different tax regimes and interrogate what we need to be reviewed and lobby for change. For example, is it a matter of “Value Added Tax” in imported technological investments like cameras, microphones, and such apparatus that facilitate essential business activities, that we need cured? Is it a question of Income Tax, How can that be coined or amended to accommodate creative industry businesses to make it sustainable and not punitive?

Intellectual property registrations. We have laws in place that facilitate the registration of Intellectual property assets. From patents to trademarks, industrial designs, and copyrights just to mention a few IP assets predominantly relevant in the creative sector. Let’s review and identify the real problems concerning IP issues and address them. If you asked me, at the top of my hat, one of the issues around IP registrations and the difficulties we encounter as practitioners is the lack of a pragmatic and simple system of procedures to facilitate registrations. With the embracing of technology by the government and government entities, many a time as practitioners we feel bullied by the employed technologies.  I feel so. The unpredictability and downtime we face when interacting with these systems is insane! As such, there are many delays because new red tape is introduced constantly. Can we keep it simple so that even the cost of registrations is reduced? We fix this and access will be easier, this also includes business registrations and any amendments to be filed thereafter.

Fair business practices are another issue altogether. Our actors and models are earning peanuts from their production sets. We cannot have collective bargaining agreements because we do not have an active union/unions in place. Meanwhile, under the Labour Relations Act (S. 14 (1) (d), there is a provision that prohibits the registration of other unions where there is one already in place representing similar or same interests. What happened to our constitutional right of freedom of association? There is a registration in place that has been dormant for decades that hinders registration of any other trade unions in the creative industries space.

And what about contracts? I have seen some of the most unfair contracts ever drafted that creative entrepreneurs sometimes succumb to because they must eat. Poor working conditions and terrible pay among others. Not so long ago, I reviewed an actor client’s contract, it was an oppressive agreement. I advised the client and as custom would have it, the minute they asserted their rights and value, they were dismissed from the project and subsequently “blacklisted”. How is this fair?

Let’s review the employment law, and competition law, craft an unfair trade practices framework, let us introduce an Agency law, and stop relying on common law principles. The industry suffers because of unregulated middlemen. In the meantime, let’s shift focus to the Copyright Bill. We have a chance at a clean slate to build a robust all-inclusive and updated copyright law regime.

These are among other legislations and policies reviewed that are dire in the creative industries. We do not need to legislate mentorship. How about we empower organizations that mentor and incubate creative businesses through law and harness successful collaborative efforts between them and the government? Let us account for the funds already created in the name of the creative economy before we go further to set up another. I have barely scratched the surface in terms of the needs of the creative industries. The cosmetic activities around the regularisation of the creative industries are quite tiresome.  Let’s be practical and pragmatic.

Let the laws be for the people by the people and led by the people. Not laws by Parliament for Parliament! And can we stop doing rush jobs too? The sector would benefit from knowledge sharing to be able to contribute adequately to issues legislation and policy.

To the Hon. CS Murkomen, my former teacher, may your regime as the CS on matters creative sector put an end to the fluffy approach of the industry and birth tangible practical legislative solutions. Let’s have a policy and legislative round table and delve into the issues. Let’s bring light to sustainable practices and laws altogether!